-I dissent.
I cannot agree that the evidence is sufficient to support a judgment of murder of the first degree. The judgment cannot be sustained on the theory of lying in wait as the evidence falls far short of establishing this ground and the jury was not instructed on the law applicable thereto. The evidence is sufficient to support a judgment of murder of the second degree and I would modify the judgment accordingly and affirm it as so modified.
Appellant’s petition for a rehearing was denied October 15, 1953.
Carter, J., and Schauer, J., were of the opinion that the petition should be granted.